Disclaimer: Paid for by Blank Check. Blatant Deception. Vote No on 73. © 2018

Don't be deceived
Colorado

A committed group of business associations, advocacy organizations, and individuals have formed a powerful coalition opposed to Amendment 73.  

 

THE COALITION INCLUDES: Colorado Bankers Association, Colorado Restaurant Association, Associated General Contractors, Colorado Association of Mechanical and Plumbing Contractors, Colorado Association of Realtors, Denver Metro Commercial Association of Realtors, Denver Metro Chamber of Commerce, Colorado Competitive Council, Ready Colorado, Independence Institute, Colorado Rising Action, Colorado Farm Bureau, Americans for Prosperity, Building Jobs4Colorado, South Metro Denver Chamber of Commerce.

Join the Coalition to
Fight Amendment 73

CAMPAIGN CO-CHAIRS: 

Dave Davia, Executive Vice President & CEO at Colorado Association of Mechanical & Plumbing Contractors

 

Katie Kruger, CEO of the Denver Metro Commercial Association of Realtors

 

Luke Ragland, President, Ready Colorado

Amendment #73 Title Errors



Sent Via Hand Delivery and Electronic Mail

September 18, 2018


Wayne Williams

Colorado Secretary of State

1700 Broadway, Suite 200

Denver CO 80290


Re: Amendment #73 Title Errors


Dear Secretary Williams:


Amendment #73’s ballot title contains material misstatements of fact that render the ballot title invalid under established legal precedent. These are not marginal errors but are material misstatements of numerical tax rate increase. Specifically, the two most significant errors in the ballot title are: 1) the ballot title states that the corporate income tax rate increases 1.37% when it is actually a 29.59% increase; and 2) the ballot title states that the greatest income tax rate increases 3.63% when it is actually a 78.19% increase.


These are massive numerical errors that would materially misinform voters and affect how they cast their votes on this measure. Under established Colorado legal precedent, Amendment #73’s title cannot be voted upon containing these material misstatements.


The Colorado Supreme Court has made clear that a ballot title must be addressed if it is not a “clear title” and if it “contains a material omission, misstatement, or misrepresentation.” Matter of Title, Ballot Title and Submission Clause for 2013-2014 #85, 328 P.3d 136, 142 (Colo. 2014). Amendment #73’s ballot title indisputably contains material misstatements.


The Colorado Supreme Court has also made clear that a court should resolve these matters before an election even if the statutory ballot title challenge process has expired: “even if the statutory remedy had been unavailable due to lapse of time, the statutory procedure is not exclusive.” Glendale v. Buchanan, 578 P.2d 221 at 226 (Colo. 1978). In fact, the Court cites two cases allowing a court to address a ballot title any time before the election regardless of whether the statutory process has concluded, noting that “both cases held that statutory procedure for challenging initiative petitions was not expressly an exclusive remedy and therefore did not deprive court of jurisdiction in suit to enjoin placing measure on ballot.” Id. The court requires that objections to ballot titles be made before an election because of the greater challenge of proving the effect of the misleading ballot title on the election. Id. at 225. Challenging a ballot title any time before the election is necessary to avoid the quandary that will exist after the election when voters relied on an erroneous ballot title.


Amendment #73’s ballot title plainly contains material misstatements and material misrepresentations. Colorado voters are being asked to increase tax rates, and the percentage increase of those tax rates are grossly understated in the ballot title. Amendment 73 cannot be presented to voters with these material misstatements of fact; votes will rely on these material misstatements in Amendment #73’s title.


This letter requests that that Secretary of State file a motion requesting a court to invalidate Amendment #73’s inaccurate ballot title and enjoin use of this title on the 2018 ballot. As the chief election officer of the state, the Colorado Secretary of State is the appropriate party to seek a legal remedy to resolve these ballot errors. “The secretary of state is charged with the administration and enforcement of the provisions of this article relating to initiated or referred measures and state constitutional amendments.” C.R.S. §1-40-1332(1). A court is the only remaining avenue to properly resolve this legal matter to preserve the integrity of the 2018 general election process.


The following sections detail the facts and applicable legal standards demonstrating that Amendment #73’s current ballot title is invalid and must be resolved before the election.


Amendment #73’s Title Contains Two Material Misstatements


The title for Amendment #73 contains two material misstatements:


  1. The title states that the amendment is “increasing the corporate income tax rate by 1.37%”. This is not close to accurate. The current tax rate for corporations is 4.63%. C.R.S. §39-22-301(1)(d)(I). Amendment #73 proposes an additional tax rate of 1.37%. This is a 29.59% increase in the current tax rate. An accurate title might state that the amendment is increasing the corporate income tax rate by 29.59%, that it is increasing the corporate income tax rate by 1.37 percentage points, or that it is increasing the corporate income tax rate from 4.63% to 6%.

  2. The title states that the amendment is “increasing income tax rates incrementally for individuals, trusts, and estates using four tax brackets starting at .37% for income above $150,000 and increasing to 3.62% for income above $500,000.” This language is not close to accurate either. The current tax rate for individuals, trusts, and estates is a flat 4.63%. C.R.S. §39-22-104(1.7). The amendment proposes an additional tax rate for those with income above $150,000 of .37%. This is a 7.99% increase in the tax rate. The amendment proposes an additional tax rate for those with income above $500,000 of 3.62%. This is a 78.19% increase in the tax rate. An accurate title might state that the amendment is increasing income tax rates incrementally for individuals, trusts, and estates using four tax brackets starting at 7.99% for income above $150,000 and going up to 78.19% for income above $500,000, or that the amendment is increasing the income tax rate incrementally for individuals, trusts and estates using four tax brackets starting with an increase for those with income above $150,000 from 4.63% to 5%, and ending with an increase for those with income above $500,000 from 4.63% to 8.25%.


In each section the title states that the amendment is increasing the tax rate a certain percentage (or increasing it by a certain percentage). A simple example explains this error: moving up from 40% to 44% is a 4-percentage point increase, but is an actual 10 percent increase in what is being measured, so if a person were to increase his fee from 40% to 44%, the correct statement, using the same wording used in Amendment #73, is that the person is increasing his fee by 10%. Likewise, Amendment #73 is increasing corporate tax rates by 29.59% and increasing marginal individual tax rates for those with income over $500,000 by 78.19%.


Amendment #73’s current ballot title, by objective quantifiable measurements, contains material misstatements/misrepresentations and the current ballot title must be invalidated prior to the election to avoid misleading voters. Although the title setting process has ended, the courts have made clear that a court can and should still address any material ballot title errors prior to the election.


Material Misstatements in Title Should be Resolved Before Election


A court may rule on the legality of a ballot title any time before the election regardless of whether the ballot title was challenged through the protest process set forth in C.R.S. §1-40-106 to 107. The Colorado Supreme Court, citing precedent, stated that the title can be challenged before the election even if the time limit for using the statutory remedy to challenge the title had passed:


  • …even if the statutory remedy had been unavailable due to lapse of time, the statutory procedure is not exclusive. The ballot title could have been challenged in court before the election. Bauch v. Anderson, 178 Colo. 308, 497 P.2d 698 (1972); Henry v. Baker, 143 Colo. 461, 354 P.2d 490 (1960); Say v. Baker, 137 Colo. 155, 322 P.2d 317 (1958). Cf. Brownlow v. Wunch, 102 Colo. 447, 80 P.2d 444 (1938); Elkins v. Milliken, 80 Colo. 135, 249 P. 655 (1926) (both cases held that statutory procedure for challenging initiative petitions was not expressly an exclusive remedy and therefore did not deprive court of jurisdiction in suit to enjoin placing measure on ballot).


Glendale, 578 P.2d at 226. Colorado courts have made clear that a legal challenge filed after the title board’s appeal process has concluded, but before the election, is possible, but filing a title challenge after the election requires a heavy burden of proof: “[t]o invalidate the amendment after the election would be costly and disruptive, and cannot be justified unless good cause is shown why no challenge was made before the election….” Id.


Rationale for Invalidating Amendment #73 Title Before Election


Courts have contemplated when they must invalidate a title before an election. The Supreme Court ruled that it would “reverse the Title Board's decision only if a title is insufficient, unfair, or misleading,” and it would reverse the decision if the title “contains a material omission, misstatement, or misrepresentation.” Matter of Title, Ballot Title and Submission Clause for 2013-2014 #85, 328 P.3d 136, 142 (Colo. 2014) citing In re 2009–2010 No. 45, 234 P.3d at 648 and In re Title, Ballot Title & Submission Clause, & Summary for 1999–2000 o. 29, 972 P.2d 257, 266 (Colo.1999).


The errors in Amendment #73’s title are quantifiable and material. This is not a subjective complaint about the meaning of a title; these are factual numerical errors that have a material impact on the issue presented to the voters: if taxes should be increased by imposition of new tax rates. The amendment does not propose to increase the corporate income tax rate by 1.37%; it proposes to increase the corporate income tax rate by 29.59%. This is a material misstatement in Amendment 73’s current title. The amendment does not propose to increase income tax rates for individuals, trusts, and estates for those with income above $500,000 by 3.62%; it proposes to increase in the income tax rate by 78.19%. This is a material misstatement in Amendment 73’s current title. Any vote on the current ballot title language would be based on materially inaccurate information being presented to the voters.


Conclusion


In accordance with your constitutional authority as chief election officer of the state and your statutory duty over the administration and enforcement of state ballot measure elections, this letter requests that your office immediately initiate an action to address the material misstatements contained in Amendment 73’s ballot title. At this point, only a court can properly resolve this issue. This exceptional measure is immediately necessary to ensure voters do not have to vote based on material misstatements and to preserve the integrity of the election.


Sincerely,


Jonathan Anderson